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This article is written by Bhumika Dandona from School of Law, Sushant University (erstwhile Ansal University), Gurgaon. This article talks about the importance of the right to dissent in a democracy and more particularly about its necessity in the Indian democracy.

Introduction 

It was back in 2012 when the police of Tamil Nadu arrested various people protesting peacefully against the decision of the state government to construct a nuclear power plant in Kudankulam. However, this is just one of the many such instances. There are several other events, some very recent as well, that raised the issue of violation of the people’s fundamental rights in India. The police arrested many activists simply because they had an outlook different from that of the government. What finally brought the arrests into effect was the vocalization of such viewpoints. It made the majority of the population wonder if they are at all living in a democratic country or not. This article seeks to address all these questions and explore the aspects of disagreement regarding governmental decisions and policies.

Meaning of dissent 

The term ‘dissent’ means when a person or a group of persons hold an opinion that substantially differs from the one commonly held. In simple words, it is a difference of opinion. For example, unlike many others, you don’t want expensive mobile phones because you think of them as a waste of money. Here, you’re dissenting from the majoritarian opinion. It is vital to understand that lack of agreement is a personality trait found in all humans. Generally speaking, there is absolutely nothing wrong with wanting to have a different viewpoint. It gives rise to critical thinking and improves one’s analytical skills, amongst other things. 

Constitutional status to dissent in India

  • The example mentioned in the preceding paragraph rightly suggests what the right to dissent is. The right to dissent is an entitlement to disagree. It comes under the purview of Article-19(1), contained in Part-III (Fundamental Rights) of the Indian Constitution. Sub-clause (a) of clause (1) of the Article grants all the citizens the right to freedom of speech and expression. Sub-clause (b) provides them with the right to assemble peaceably and without any arms. Sub-clause (c) ensures citizens the freedom to form unions or associations. A combination of these three specific rights enables them to express their contrasting views. 
  • However, clause (2) of the Article imposes reasonable restrictions on the exercise of this right. In the view of sovereignty and integrity of the country, its security, relations with foreign countries, public order, decency, morality or contempt of court, and defamation or instigating illegal activities, the government may make laws that prevent such exercise. Thus, the citizens can speak and express themselves in whichever way they want. They are free to agree or disagree with anything openly.  But it is so far, as they don’t do so in the violation of any law or governmental policy or in ways that give rise to organized public chaos.
  • One must note that the right to dissent, being a fundamental right, is enforceable only against the government or any other authority, which comes under the purview of the ‘State’ as defined under Article-12 of the Constitution. In this sense, the right to dissent means an open disagreement against the aforesaid bodies.

Democracy and the right to dissent

Almost everyone is well aware that democracy is a governing setup formed by ordinary people. It is through their choice that a government comes into power. Therefore, the government becomes accountable to the people. It needs to work for the welfare of the country and its people. To do the same, the government needs to take into consideration the opinion of the public. It is because the public knows the best about how they want any administration to govern them. The government must also utilize the expertise of appropriate persons to develop an adequate ruling system. This feature is the hallmark of democracy because it purely relates to a public function.

Now that we know what a democracy is, why the right to dissent is significant for its proper functioning has become self-explanatory. Nevertheless, let’s delve into it anyway. Differing opinions as to why a decision or a policy might not have favorable consequences would help the government reflect on its actions. This would further push it to make pertinent changes and make things more suitable and beneficial. Hence, open criticism of or feedback on governmental decisions and measures by the public is necessary. It is also why the Indian Constitution indirectly recognizes dissent as a fundamental right. Apart from that, dissent creates new perspectives regarding the same issue, leading to several new ways to solve it.

Significance of the right to dissent in the Indian democracy 

Historical background 

The history of dissent in the Indian subcontinent dates back to the Vedic period. The saints of the Vedic era advocated that one should try to be open to all opinions, however different. Later on, the historians observed that the religious saints such as Guru Nanak subjected the then prevalent social norms to open condemnation. Afterward, it became more evident during the freedom movement initiated by Mahatma Gandhi. In fact, dissent and protest were the two notable principles that marked India’s struggle for independence. Those engaged in the fight went against the ruling ideology of the colonial government, because of which we can live the life we are ultimately living today. Within three years after the departure of the British from the country, the Constitution came into force. The makers of this supreme law included the principles of protest and dissent within it. The operation of these two hallmark features of democracy is also liable to reasonable restrictions. Although, as mentioned earlier, they do not have an absolute and explicit expression in the same.

Current situation 

In today’s time, there has been a noticeable change in this characteristic of the nationalist policy of India. The example that follows seeks to explain it in a better manner. It is nothing new that if citizens do not stand in respect whenever the national anthem plays, be it in movie theatres or at public gatherings, criticism comes their way, especially from politicians. Presently, every person, whether the leader of the opposition or the ordinary man, has to be careful about their actions and words. It is because things can get easily misconstrued as something that they never meant. Disagreeing with or having an opinion different than the popular one, especially one concerning politics, can often be seen as incitement to a sort of rebellion seeking to invoke anti-national sentiments. 

Famous examples of violation of the right to dissent

There are many examples where the comparison of the right to dissent with anti-national elements is quite observable. Some of the popular ones are as follows:

Safoora Zargar and her involvement in anti-CAA protests 

Safoora Zargar, a student at Jamia Millia Islamia, had been arrested by the Delhi Police’s Special Cell in April 2020. This incident caused outrage on social media regarding her continued arrest without bail. All Safoora did was carry out a peaceful protest through which a common opinion regarding the Citizenship (Amendment) Act, 2019 exuded. The Delhi High Court granted her bail two months later, in June.

Umair Khalid’s sedition controversy

The Delhi Police arrested Umair Khalid, a student from Jawaharlal Nehru University in September 2020. The police claimed that he was a part of the Delhi Riots concerning the CAA. He had allegedly made provocative comments in his speech to cause public violence in respect of the Act. However, when the full video clip of his speech leaked on digital platforms, people realised that Umair did not speak any provoking words at all.

Kanhaiya Kumar’s misunderstood support for the Kashmiri migrants 

In 2016, the police arrested Kanhaiya Kumar, a Jawaharlal Nehru University student, on the grounds of allegedly shouting the catchword – ‘anti-India’. He was protesting against the legal execution of Kashmiri migrants, extending his support to the favour of the people of Kashmir. 

The differing perspective of Gurmehar Kaur

Another occurrence was concerning a Lady Shri Ram College of Delhi University student, Gurmehar Kaur. She went on record to express her dissenting perspective against the Akhil Bharatiya Vidyarthi Parishad (ABVP), a student wing of the Rashtriya Swayamsevak Sangh (RSS). It is pretty clear now why Gurmehar became the talk of the news that day. Many people portrayed her as being against India because she had an opinion different from that of the ruling party. Those who blamed her for it were the supporters of the government in power. It is a natural aspect of anyone’s character to be defensive about things they favour strongly. But these days, things mostly take a turn for the bad

Farm Laws 2020 and farmers’ protests

A very recent incident includes that of the Farm Laws 2020. Farmers belonging to Punjab have been protesting against the agricultural amendment laws brought in effect by the government. These laws restrict the government’s involvement in the sector, leaving it vulnerable to the private market. The government deployed police forces to prevent the farmers from carrying out their protesting activities. They even resorted to tear gas and water cannons to remove them from the roads. 

The toolkit case 

Yet another recent incident is involving a now famous climate activist. The Delhi Police arrested Disha Ravi in early February this year. She had allegedly circulated a toolkit (a collection of resources on a particular subject) on social media relating to the farmers’ protest. The police officers, in their claims, stated that the set of resources involved links to the pro-Khalistani sites. They charged Disha with sedition for (apparently) going against the government and supporting the farmers in actuality. Almost half a month later, the Sessions Court in Delhi accepted her bail application and she was let go from the police custody.

Challenges obstructing the right to dissent 

Following are some of the major challenges standing in the way of the functioning of the right to dissent:

The Unlawful Activities (Prevention) Act, 1967 : Unlawful control on dissent

Prosecution of people under the Unlawful Activities (Prevention) Act, 1967, has become a common method for curbing dissent. The aim of the Act, as the name suggests, is to minimize the number of illegal activities committed to causing harm to the integrity and sovereignty of India. It covers nationals as well as foreign nationals within its sphere. The Act awards the death penalty and life imprisonment as punishments. 

The unfortunate comparison of dissent with sedition

There have been several instances wherein the laws for sedition were one such way to tackle dissent. It used to and still happens in India. The term, as defined under Section-124A of the Indian Penal Code, 1860, means that if anyone uses either word (spoken or written), signs, visible representation, or makes attempts with a view to causing hatred or disaffection against the government, they shall be subject to life imprisonment or fine or both.

Historical perspective on sedition 

The concept first emerged way back in 17th century England when the lawmakers upheld that disagreeing opinions against the government may lead to an unpleasant environment and downfall of the same. It is how sedition laws made their way into the legal system of India during colonial rule. The British administration inserted Section-124A in the IPC in 1870. Bal Gangadhar Tilak was the first person prosecuted under this law.

The judicial system’s stance in a nutshell 

The Supreme Court has time and again put forth its views on the sedition provision and its unlikely relation to dissent. In the case of Kedar Nath v. The State of Bihar, the apex court, while upholding the constitutional validity of Section-124A, also stated that the provisions have to have reasonable limitations placed on their exercise. It must be in operation only when situations are such that acts involving an intention to cause disturbance of law and order are prevalent. In another case of Balwant Singh v. State of Punjab, the Court claimed that mere representation of slogans without any calculations of creating a violent atmosphere and inviting reactions from the public does not amount to sedition.

The Sessions Court in Delhi, in its recent order involving the arrest of climate activist Disha Ravi providing bail to her, made some significant observations about dissent. The Additional Sessions Judge Dharmendra Rana stated that arresting people for having an opinion against the government is not justifiable. He further asserted how the Indian civilization always welcomed diverging views of the people.

Ways to combat the challenges 

The below mentioned ways to counter the challenges to the right to dissent are just what the country requires at this point:

Pro-active judicial mechanism 

As we have seen in the above-specified decisions of the various courts, judicial intervention in the matters of violation of the right to dissent has been effective. Thus, the judiciary’s active role in determining such cases will be beneficial.

Need for repealing the existing laws 

The existing laws, such as that of sedition and the UAPA are in dire need of amendments. These legislations fail to differentiate between incitement of unpleasant circumstances and expression of dissent. Creating such distinction will provide clarity on what the right to dissent actually means. 

Establishment of a civil cultural 

Just dynamic judicial involvement and changes to subsisting regulations are not enough. Citizens must also learn to accept and respect differing opinions, for it is no harm to think differently about the same things. There is a need for instilling a civil culture in the minds of the people. It is critical in achieving peace and protecting the rights of individuals.

Conclusion 

Dissent and democracy are closely associated with one another. The kind of power this alliance creates is unbelievably essential and required. When one speaks their mind honestly, without any fear, it gives rise to an open debate on a particular topic. Unwillingness to come together in a specific point of view promotes the efficiency of governmental functioning. It forces the government to think upon its decisions again and make the desired and necessary changes in its policies. Further, it also opens a doorway to the various different lookouts over an issue in question.

Indeed, a good sign of governance is creating such resolutions that are the most acceptable to the public. Regulated open criticism strives to find the perfect in the imperfect. Moreover, it comes with unity amongst the people. To conclude, why the right to dissent is critical is because a government wants nothing more than harmony in its period of rule, and the people don’t want anything more than being able to communicate their actual stance with no fright. This right makes it possible. 

References 


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